The New York Court of Appeals today decided People v. Weaver, 12 N.Y.3d 433 (May 12, 2009), holding that the NY Constitution prohibits the use of GPS transmitters on vehicles without a warrant, following other state courts analyzing the issue under their constitutions. This is a stunningly prescient opinion:
At first blush, it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominantly public roads and, as in Knotts, these movements were at least in theory exposed to "anyone who wanted to look" (id. at 281). This, however, is where the similarity ends.
Knotts involved the use of what we must now, more than a quarter of a century later, recognize to have been a very primitive tracking device. The device was, moreover, used in a focused binary police investigation for the discreet purpose of ascertaining the destination of a particular container of chloroform. And, in this application, during the single trip from the place where the chloroform was purchased to the Knotts cabin, the beeper was fairly described by the Court as having functioned merely as an enhancing adjunct to the surveilling officers’ senses; the officers actively followed the vehicle and used the beeper as a means of maintaining and regaining actual visual contact with it. The technology was, in this context, not unconvincingly analogized by the Court to a searchlight, a marine glass, or a field glass (id. at 283, citing United States v Lee, 274 US 559, 563 ).
Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or "seeing" by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.
That such a surrogate technological deployment is not -- particularly when placed at the unsupervised discretion of agents of the state "engaged in the often competitive enterprise of ferreting out crime" (Johnson v United States, 333 US 10, 14 ) -- compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person's progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit's batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons -- to mention just a few of the highly feasible empirical configurations.
. . .
Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.
The opinion even quotes Brandeis' 1928 Olmstead dissent on the right to be let alone:
The protection guaranteed by the Amendments [the Fourth and Fifth] is much broader in scope [than the protection of property]. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
The Albany Times-Union has articles about the GPS case, previously noted here, from the day of the argument and from today: NY court hears arguments on police use of GPS. It sounds like a spirited argument:
At the center of discussion was the case of Scott Weaver, whose conviction in a Christmas Eve 2005 break-in was aided by a GPS device that state police secretly attached to his van for 65 days.
Defense lawyer Matthew Hug said the GPS device intruded on his client's right to privacy.
"The potential for abuse is staggering," Hug said, noting that the satellite technology tracks vehicles onto private property where police can't routinely go.
Albany County Assistant District Attorney Christopher Horn told the judges that GPS was essentially just another way of watching a vehicle, which police routinely do without first obtaining a warrant. He doesn't believe GPS tracking is unconstitutional.
. . .
Rulings in New York and federal courts so far say police can install the devices without getting approval from a judge.
However, state courts in Oregon and Washington have said that police use of GPS without a warrant is prohibited under their constitutions. Another case out of Maryland is pending before a federal appeals court.
The judges with New York's Court of Appeals grilled both lawyers. They asked whether it would be lawful for people to attach GPS monitors on their neighbors' vehicles, whether automakers could install them in all new cars so authorities could monitor movement and whether "no trespassing" stickers on bumpers would prevent a driver from being tracked by GPS.
See also News 10 in Albany.
People v. Weaver is being argued Tuesday afternoon in the New York Court of Appeals and argues that warrantless GPS monitoring of a vehicle violates the New York Constitution because there is no temporal or spatial limitation on monitoring.
“By its nature, GPS is a valuable tool because it permits long-term, sustained surveillance. But its potential for abuse is staggering. To allow this kind of personal data collection without judicial oversight is an Orwellian nightmare. The minimal time required to obtain a warrant based on probable cause restores balance and cannot credibly be said to impede legitimate law enforcement objectives,” Walsh, lead counsel for the group, said in a statement.
The amicus brief is here. Perhaps in the confines of this case citizens may get some relief.
Defendant consented to a search when officers encountered him in midday, parked next to him, and asked to talk to him. United States v. Dawson, (4th Cir. 2008), quoting United States v. Weaver, 282 F.3d 302, 309-10 (4th Cir. 2002)* (unpublished):
[g]enerally speaking, a "seizure" warranting protection of the Fourth Amendment occurs when, in view of the totality of the circumstances surrounding the "stop," a reasonable person would not feel free to leave or otherwise terminate the encounter. Because the test is an objective one, its proper application is a question of law. Circumstances where the citizen would feel free to go, but stays and has a dialogue with the officer, are considered consensual, and therefore do not implicate the Fourth Amendment. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. In applying the totality of the circumstances test, courts look to numerous factors including the time, place and purpose of the encounter, the words used by the officer, the officer's tone of voice and general demeanor, the officer's statements to others present during the encounter, the threatening presence of several officers, the potential display of a weapon by an officer, and the physical touching by the police of the citizen.
A case Lexis didn't send to me, but reported by a colleague:
Defendant's being an alleged child molester in an interstate traveler case did not give probable cause to believe that child pornography would be found in his house. Even Leon did not save it. United States v. Hodson, 2008 U.S. App. LEXIS 20240, 2008 FED App. 0348P (6th Cir. September 19, 2008):
We opined in United States v. Adkins, 169 F. App'x 961, 967 (6th Cir. 2006), that "[s]tanding alone, a high incidence of child molestation by persons convicted of child pornography crimes may not demonstrate that a child molester is likely to possess child pornography." We adhere to that view and conclude that it was unreasonable for the magistrate judge in this case, when confronted with the request for the warrant, to infer such a nexus without further evidence to support that inference. It is similarly unreasonable for the officer executing the warrant either to infer that nexus herself or to rely on her own subjective knowledge to claim reasonable reliance on the warrant. 5 HN4An officer seeking a warrant must produce adequate supporting facts about the underlying circumstances to show that probable cause exists to support the particular search requested. United States v. Weaver, 99 F.3d 1372, 1377 (6th Cir 1996) (citing Whiteley v. Warden, 401 U.S. 560, 564, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971), and Nathanson v. United States, 290 U.S. 41, 47, 54 S. Ct. 11, 78 L. Ed. 159 (1933)).
Defendant's hand to hand drug deal from his car five days earlier was reasonable suspicion to detain the car for a dog sniff. United States v. Ferrell, 293 Fed. Appx. 934 (3d Cir. September 29, 2008) (unpublished).
Defendant's live in girlfriend obviously had authority to consent to a search of their shared property. United States v. Nichols, 2008 U.S. Dist. LEXIS 76549 (W.D. Ark. August 26, 2008).*
Defense counsel's failure to file a suppression motion was not ineffective assistance where the motion was groundless. Hillary v. Sec'y for the Dep't of Corr., 294 Fed. Appx. 569 (11th Cir. September 26, 2008) (unpublished).*
Plaintiff's civil search claim here necessarily attacked the underlying basis for his conviction, so it was barred under Heck. Weaver v. Geiger, 294 Fed. Appx. 529 (11th Cir. September 24, 2008) (unpublished).*
Placing a GPS device under defendant's car to trace its movements to connect him to a burglary did not violate his expectation of privacy. The N.Y. Constitution affords no additional rights in this regard. People v. Weaver, 2008 NY Slip Op 4960, 52 A.D.3d 138, 860 N.Y.S.2d 223 (3d Dept. 2008):
In addressing this issue, we are guided by the well-settled principle that "where there is no legitimate expectation of privacy, there is no search or seizure" under the Fourth Amendment (United States v Moran, 349 F Supp 2d 425, 467 ). As the federal courts have observed, a defendant has no reasonable expectation of privacy in the publicly accessible exterior of his or her vehicle, and the undercarriage is part of the vehicle's exterior (see New York v Class, 475 U.S. 106, 112-114 ; United States v Rascon-Ortiz, 994 F2d 749, 754 [10th Cir 1993]; see also People v Jackson, 143 AD2d 471, 472 ). Nor can a defendant expect privacy as to the location of his or her vehicle on public streets (see United States v Knotts, 460 U.S. 276, 281-282 ; People v Edney, 201 AD2d 498, 499 , lv denied 83 NY2d 910 ). Thus, it has been held that collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle's undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment (see United States v Knotts, 460 U.S. at 281-282; United States v McIver, 186 F3d 1119, 1126-1127 [9th Cir 1999], cert denied 528 U.S. 1177 ; United States v Coulombe, ___ F Supp 2d ___, ___, 2007 WL 4192005, *4 [ND NY 2007]; United States v Moran, 349 F Supp 2d at 467). Moreover, nothing in the Fourth Amendment prohibits the police from using science and technology to enhance or augment their ability to surveil that which is already public (see United States v Knotts, 460 U.S. at 282, 284). Inasmuch as constant visual surveillance by police officers of defendant's vehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant's Fourth Amendment protections (see People v Wemette, 285 AD2d 729, 729-730 , lv denied 97 NY2d 689; People v Edney, 201 AD2d at 499).
Anonymous tip ordinarily would not be enough for a parole search, but, here, coupled with defendant's recidivist history and the officer's knowledge of parole violations for drug use, it was enough. People v. Burry, 2008 NY Slip Op 4956, 52 A.D.3d 856, 859 N.Y.S.2d 499 (3d Dept. 2008):
The tip received by Johnson here was very specific with regard to the location of the drugs. Thus, the tip provided predictive information of illegal activity. This, coupled with Johnson's knowledge of defendant's recidivist history, previous parole violation and illegal drug use, possession and sales, was sufficient to provide the requisite individualized reasonable suspicion to support the search of defendant's home and the seizure of the drugs and related items found there (see Florida v J.L., 529 U.S. at 270-271; United States v Muhammad, 463 F3d at 121; People v Huntley, 43 NY2d at 181-182). We, therefore, find that defendant's motion to suppress that evidence was properly denied.
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